Citation Nr: 1507229
Decision Date: 02/19/15 Archive Date: 02/26/15
DOCKET NO. 12-05 657 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUE
Entitlement to service connection for residuals of a cold injury claimed as frostbite.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The Veteran had active military service from December 1950 to September 1952, including service in Korea.
This appeal comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision.
The Veteran testified before the undersigned Veterans Law Judge in January 2015 via Videoconference. The transcript of the hearing is associated with the Veteran's electronic file. An observer was present at the hearing, but did not testify.
During the pendency of this claim, the Veteran was granted service connection for hearing loss. A claim for service connection for tinnitus was denied. The record does not reflect that the Veteran has disagreed with any aspect of either determination. The claim listed on the title page is the only claim before the Board for appellate review at this time.
The Veteran's claims file is in electronic form. The electronic records on VBMS (Virtual VA and eFolder documents) have been reviewed in preparation for this decision.
FINDINGS OF FACT
1. The circumstances of the Veteran's known service in Korea in 1951 and 1952 are consistent with the Veteran's contention that he incurred frostbite while in Korea.
2. The lay and medical evidence of record is in equipoise to warrant a finding that the Veteran has left toe pain and sensitivity residual to a cold injury incurred during his active service.
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of a cold injury, left great toe, are met. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
It is undisputed that the Veteran had active service from December 1950 to September 1952, and that he served in Korea for at least 11 months. Other than a DD Form 214, "Report of Separation from the Armed Forces of the United States," no service medical, administrative, or personnel records for the Veteran have been located. The National Personnel Records Center has advised VA that the Veteran's official records of his military service were lost in a fire.
The Veteran reports that, while he was stationed in Korea, his left big toe began to hurt after he had been outside in the cold. The Veteran reports that he asked a Medic to look at it, and was told he had frostbite. The Medic told him to put the foot in cold water (presumably so the affected toe did not warm too quickly). The Veteran has reported and testified that left toe pain and sensitivity have been present at least intermittently since his service, worse in the last few years.
The Veteran has submitted undated photographs which show an individual in military garb. In two photographs, there appears to be snow on the ground, and what appears to be frozen water appears in a third photograph.
The Veteran has reported and testified that he sought medical evaluation of his painful left big toe in about 1957, some 55 years ago, and was told that there was no treatment. The Veteran reports that the physician who performed that evaluation has died, and his records cannot be located. The Veteran reports that he did not seek evaluation again for many years, and was again told that there was no treatment.
VA clinical records associated with the claim file, reflecting treatment from 2001 to 2012, include no discussion of frostbite. The VA clinical records reflect that a diagnosis of diabetes mellitus was assigned in about 2002. Private treatment records dated in March 2012 reflect that the Veteran sought evaluation of his left great toe pain in March 2012. The provider noted that the Veteran reported a history of left toe pain for two to three years, and also noted that the Veteran reported that left great toe pain had increased in the past two to three years. No arterial insufficiency was identified.
The examiner who conducted a June 2014 VA examination concluded that there were no objective findings that confirmed a past cold injury to the left great toe. Mild osteopenia and degenerative changes of the toes were present. The examiner concluded that the objective findings were related to the Veteran's age, since there were no service treatment records which showed frostbite.
The only evidence which supports the Veteran's claim consists of statements and testimony by the Veteran. No evidence other than testimony, statements, and photographs submitted by the Veteran supports the Veteran's claim. However, there is no evidence that the Veteran's assertion that he incurred frostbite of the left great toe is inaccurate. The Veteran has provided essentially the same recitation of the facts consistently since he submitted the 2010 claim on appeal.
The medical providers who have examined the Veteran have not identified any objective markers of frostbite, but have provided no objective explanation of the Veteran's symptoms, other than a determination that current osteopenia and degenerative changes are likely due to the Veteran's age, given the absence of service treatment records. The medical opinions cannot be considered unfavorable evidence, since the fact that no service treatment records are available cannot be considered negative evidence.
The Veteran served in Korea, in circumstances known to have resulted in cold injuries in other servicemembers. There is no objective evidence which suggests that the Veteran's description of the event in service or the last residuals is other than credible. Resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for residuals of a frostbite injury, left great toes, is warranted.
Given this favorable resolution, no further notice or action to develop the claim is required.
ORDER
The claim for service connection for residuals, cold injury, left great toe, is granted.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs